And in Ekiu v. United States3 the court declare: "It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such case and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, 94, 100; 1 Phillimore (3d. ed.), chap. 10, § 220. In the United States this power is vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war."

4

Again in Fong Yue Ting v. United States, the following language is used: "The right to exclude or expel all aliens, or any class of aliens,. absolutely or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare, the question now before the court is whether the manner in which Congress has exercised this right in sections 6 and 7 of the Act of 1892 is consistent with the Constitution. The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and make it effective. The only government of this country, which other nations recognize or treat with, is the Government of the Union; and the only American flag known throughout the world is the flag of the United States."

In an earlier chapter we have seen that the power of the United States to annex territory is deducible not merely from such express grants of power, as to enter into treaties, to declare war, etc., but from the national sovereignty of the United States in its international relations.

The reasoning of the court in maintenance of the principle that in all that concerns foreign relations the United States has the same plenitude of constitutional power as that possessed by

3142 U. S. 651; 12 Sup. Ct. Rep 336; 35 L. ed. 1146. 4149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905.

other sovereign States is sound. This appeal, however, to the fact of "national sovereignty" as a source of federal power is not a valid one outside of the international field. It cannot properly be resorted to when recognition of an international obligation on the part of the United States is not involved, and when, therefore, the matter is purely one relating to the reserved powers of the States or to the private rights of the individuals. To permit the doctrine to apply within these fields would at once render the Federal Government one of unlimited powers.5

5 The Supreme Court has, however, upon several occasions employed language which would imply the acceptance of the doctrine in this improper manner, or, at least, has appealed to it in support of conclusions reached upon other grounds. Thus in the Legal Tender Cases (12 Wall. 457; 20 L. ed. 287) Justice Bradley says: "The United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is vested with power over all foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all which are forbidden to the state governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulation and laws... Such being the character of the General Government, it seems to be a' self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally conceded to belong to every government as such, and as being essential to the exercise of its functions."

And in Juillard v. Greenman (110 U. S. 421; 4 Sup. Ct. Rep. 122; 28 L. ed. 204) the court derive additional support for its position upholding the constitutionality of the Legal Tender laws, from the doctrine that sovereign nations generally have the power. The court, in its opinion, say: “The power, as incident to the power of borrowing money and issuing bills or notes of the Government for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the Constitution of the United States. The governments of Europe, acting through the monarch or the legislature, according to the distribution of powers under their respective constitutions, had and have as sovereign a power of issuing paper money as of stamping coin. . . . The exercise of this power not being prohibited to Congress by the Constitution, it is included in the power expressly granted to borrow money on the credit of the United States, Congress as the legislature of a sovereign nation, being expressly empowered by the Constitution to lay and collect taxes, etc. .. and the power to make the notes of the government a legal tender in the payment of private debts being one of the powers belonging to sovereignty in other civilized

In summary, then, we may say that the United States Government though one of complete powers in all that relates to its dealings with foreign States, is, in all other respects, one of limited, enumerated powers.

§ 191. The Manner of Exercise of the Treaty-making Power. The Constitution provides that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur."

It was not until the closing days of the Constitutional Convention that the President was associated with the Senate in the negotiation and ratification of treaties. Upon August 23d, however, Madison observed, "that the Senate represented the States alone, and for this as well as other obvious reasons it was proper that the President should be made an agent in the treaties." September 4th, the Committee to which undetermined sections of the Constitution had been referred, reported back the treaty clause in substantially the form in which it now appears. The only discussion which the clause then received was with reference to the size of the majority that should be required in the Senate for approval of treaties, and whether treaties of peace should not, by way of exception, require only a simple majority vote.

The second clause of Article VI of the Constitution declares that "This Constitution, and the laws of the United States nations, and not expressly withheld from Congress by the Constitution; we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in the payment of private debts is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of Congress."

In the foregoing it will be observed that the court find the legal tender power implied in other powers expressly given by the Constitution to Congress, but the validity of this implication it founds on the nature of sovereignty as exemplified in the political world generally.

66

Again in United States v. Jones (109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 1015) with reference to its powers of eminent domain, the court say: The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and as said in Boom v. Patterson (98 U. S. 403; 25 L. ed. 206), requires no constitutional recognition."

6 Art. II, Sec. 2, Cl. 2.

which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the Constitution and laws of any State to the contrary notwithstanding." It had been suggested in the Convention by Gouverneur Morris that no treaty should be binding on the United States until ratified by a law, but, the disadvantages of such a provision being pointed out, the suggestion was voted own. A proposal was also made, but rejected because of the often necessity of secrecy, that the House of Representatives should participate with the Senate in the ratification of treaties..

That treaties duly ratified should bind. the States, and be beyond their power to change, was never questioned in the Convention. Until August 23d, it was agreed that the General Government should have an express power to enforce by arms all treaties, but this provision was then stricken out for the reason that treaties being expressly declared to have the force of law, the federal judicial power would have sufficient authority to determine when they were infringed and to order their enforcement.

In the state ratifying conventions the fact that treaties were to be superior to state constitutions and laws created not a little fear of possible oppression. In Virginia Patrick Henry raised strong objection to this, and in several States there was urged the neces sity of an amendment specifically declaring that no treaty should operate to change the Constitution of a State..

192. The Negotiation of Treaties..

With respect to the manner in which treaty-making is, according to the Constitution, to be conducted, the first question that arises is as to the extent to which the Senate may properly participate not only in the ratification, but in the preliminary negotiation of international agreements.

In the same clause, indeed in the same sentence, of the Constitution in which provision is made for entering into treaties, it is provided that the President "shall nominate and by and

with the advice of the Senate shall appoint ambassadors, other public ministers and consuls," etc. Here the phraseology shows that the act of nominating the public officials mentioned, is clearly distinguished from their appointment. They are to be nominated by the President, but to be appointed by the Senate and President. The negotiating of treaties is not, however, by the phraseology of the treaty clause thus sharply distinguished from their ratification as regards the federal organs by which this negotiation and ratification is to be performed. The language is that the President" shall have power, by and with the advice and consent of the Senate, to make treaties," not that "he shall negotiate, and, with the consent of the Senate, ratify treaties."

As further indicative of an intended participation of the Senate in the negotiation of treaties is the fact, already adverted to, that in the Convention, until almost the last moment, it was agreed that the treaty-making power should be vested exclusively in the Senate, a body the membership of which at that time it was thought would remain comparatively small.

Actual practice exhibits frequent instances in which the Senate has participated in the negotiation of treaties.

During the first years under the Constitution the relations between the President and the Senate were especially close. In 1789 President Washington notified the Senate that he would confer with them with reference to a treaty with certain of the Indian tribes, and, on the next day, and again two days later, went with General Knox before that body for that purpose. Again, in 1790, President Washington in a written communication asked the advice of the Senate as to a new boundary treaty to be entered into

..

7 It would appear that the original intention of the framers of the Constitution was that the Senate should act more as an executive council than as an upper legislative chamber. See Ford, Rise and Growth of American Politics. The law makes the Senate the adviser of the President in the mak. ing of a treaty through all its stages-not that it requires that, in every instance, the President shall have the advice and consent of the Senate, but that, in every instance, the President has the right to have it, and correspondingly, in every instance, the Senate has the right to enforce it. It is a reciprocal right for a common benefit." Senator A. O. Bacon in the North American Review, April 19, 1906.